Citation Nr: 1045213
Decision Date: 12/03/10 Archive Date: 12/10/10
DOCKET NO. 08-02 504 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Oakland,
California
THE ISSUE
Entitlement to an initial rating higher than 20 percent prior to
January 3, 2009, for degenerative joint disease (DJD) of the
lumbar spine with sacroiliac joint strain.
(The Veteran has had a higher 40 percent rating for this low back
disability effectively since January 3, 2009.)
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
Tiffany Sykes, Associate Counsel
INTRODUCTION
The Veteran served on active duty in the military from July 2003
to December 2006.
This appeal to the Board of Veterans' Appeals (Board) originated
from a June 2007 decision of the Department of Veterans Affairs
(VA) Regional Office (RO) in Oakland, California, which granted
service connection for DJD of the lumbar spine with sacroiliac
joint strain and assigned an initial 20 percent rating
retroactively effective from December 18, 2006, the day after the
Veteran separated from service and returned to life as a
civilian. She appealed for a higher initial rating.
See Fenderson v. West, 12 Vet. App. 119 (1999).
During the pendency of her appeal, the RO issued another decision
in January 2009 increasing the rating for the Veteran's low back
disability to 40 percent, but only retroactively effective from
January 3, 2009, the date of her most recent VA compensation
examination reassessing the severity of her disability.
In a February 2009 statement, in response, she indicated that she
wanted an earlier effective date for this higher 40 percent
rating.
As support for her claim, the Veteran testified at a hearing at
the RO in October 2010 before the undersigned Veterans Law Judge
of the Board (Travel Board hearing). At the outset of the
hearing, the Veteran indicated she was satisfied with the higher
40 percent rating for her low back disability, just not the
effective date. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993)
(indicating it is presumed she is seeking the highest possible
rating unless, as here, she expressly indicates otherwise). Like
the initial 20 percent rating, she wants the higher 40 percent
rating to date back to December 18, 2006, the day after she
separated from service and returned to life as a civilian.
FINDINGS OF FACT
1. The Veteran's initial VA compensation examination in May 2007
showed range of motion of her thoracolumbar spine on forward
flexion to 70 degrees, extension to 20 degrees, lateral flexion
to 20 degrees, and lateral rotation to 35 degrees. There was
mild fatigability, weakness and lack of endurance,
but no incoordination. There was a 10-degree loss of forward
flexion due to pain on repetitive use based on three repetitions,
so lessening the forward flexion to 60 degrees with this
additional consideration.
2. The Veteran had much less range of motion during her more
recent January 2009 VA compensation examination. Her forward
flexion was to only 25 degrees, and she had 0 degrees of
extension; her left and right lateral flexion and left and right
lateral extension were less restricted - each to 25 degrees.
3. The Veteran did not have ankylosis of this segment of her
spine, favorable or unfavorable, during either evaluation, and
her VA outpatient treatment records dated since service do not
show forward flexion of her thoracolumbar spine limited to 30
degrees or less.
4. It is not shown the Veteran met the requirements for the
higher 40 percent rating for her low back disability until
January 3, 2009, the date of her more recent VA compensation
examination.
CONCLUSION OF LAW
The criteria are not met for a rating higher than 20 percent for
the low back disability prior to January 3, 2009, the date of the
more recent VA compensation examination. 38 U.S.C.A. §§ 5101,
5110 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.1, 3.155, 3.157,
3.159, 3.400, 4.71a, Diagnostic Codes (DCs)
5235-5243 (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
In the interest of clarity, the Board will initially discuss
whether the claim has been properly developed for appellate
review. The Board will then address the claim on its underlying
merits, providing relevant statutes, VA regulations, case law,
the relevant factual background, and an analysis of its decision.
I. The Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) redefined VA's
duties to notify and assist Veterans in developing their claims
for VA benefits. The VCAA was codified at 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5106, 5107, and 5126, and the implementing VA
regulations were codified as amended at 38 C.F.R. §§ 3.102,
3.156(a), 3.159, and 3.326(a).
These enhanced VCAA notice requirements require VA to notify the
Veteran of the type of evidence and information that is necessary
to substantiate her claim, including apprising her of the
evidence VA will attempt to obtain and the evidence she is
responsible for providing. Quartuccio v. Principi, 16 Vet. App.
183 (2002). These notice requirements apply to all elements of
her claim, including the "downstream" disability rating and
effective date elements - keeping in mind that her claim
initially arose in the context of her trying to establish her
underlying entitlement to service connection (since granted).
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub
nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).
Ideally, this notice should be provided before the initial
unfavorable decision on a claim for VA benefits by the agency of
original jurisdiction (in this case, the RO). Pelegrini v.
Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however,
for whatever reason it was not, or the notice provided was
inadequate or incomplete, this timing error can be effectively
"cured" by providing any necessary
VCAA notice and then going back and readjudicating the claim -
such as in a statement of the case (SOC) or supplemental SOC
(SSOC), such that the intended purpose of the notice is not
frustrated and the Veteran is given an opportunity to participate
effectively in the adjudication of the claim. See Mayfield v.
Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV);
Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).
In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the United States
Supreme Court made clear that a reviewing court, in considering
the rule of prejudicial error, is precluded from applying a
mandatory presumption of prejudice rather than assessing whether,
based on the facts of each case, the error was outcome
determinative. In Sanders, the Supreme Court rejected the lower
Federal Circuit's framework (see Sanders v. Nicholson, 487 F. 3d
881, 889 (Fed. Cir. 2007)) that all VA notice errors are
presumptively prejudicial, in part, because it was
"complex, rigid, and mandatory." Id., at 1704. The Supreme
Court rejected the Federal Circuit's analysis because it imposed
an unreasonable evidentiary burden on VA to rebut the presumption
and because it required VA to demonstrate why the error was
harmless, rather than requiring the appellant - as the pleading
party, to show the error was harmful. Id., at 1705-06. The
Supreme Court stated that it had "warned against courts'
determining whether an error is harmless through the use of
mandatory presumptions and rigid rules rather than case-specific
application of judgment, based upon examination of the record."
Id., at 1704-05. Thus, it is clear from the Supreme Court's
analysis that, while the Veterans Court may conclude generally
that a specific type of error is more likely to prejudice an
appellant, the error must nonetheless be examined in the context
of the facts of the particular case. Id.
The Veterans Court initially held in Vazquez-Flores v. Peake,
22 Vet. App. 37, 48 (2008), that prejudicial deficiencies in the
timing or content of a VCAA notice can be cured by showing the
essential fairness of the adjudication will not be affected
because: (1) the defect was cured by actual knowledge on the
part of the claimant ("Actual knowledge is established by
statements or actions by the claimant or the claimant's
representative that demonstrates an awareness of what was
necessary to substantiate his or her claim.") (citing Dalton v.
Nicholson, 21 Vet. App. 23, 30-31 (2007)); (2) that a reasonable
person could be expected to understand from the notice what was
needed; or (3) that a benefit could not have been awarded as a
matter of law. Sanders, 487 F. 3d at 889. Additionally,
consideration also should be given to "whether the post-
adjudicatory notice and opportunity to develop the case that is
provided during the extensive administrative appellate
proceedings leading to the final Board decision and final Agency
adjudication of the claim ... served to render any pre-
adjudicatory section 5103(a) notice error non-prejudicial."
Vazquez-Flores, 22 Vet. App. at 46. See also Overton v.
Nicholson, 20 Vet. App. 427, 435 (2006) (finding the Board had
erred by relying on various post-decisional documents for
concluding adequate 38 U.S.C.A. § 5103(a) notice had been
provided to the appellant, the Veterans Court nonetheless
determined the evidence established the Veteran was afforded a
meaningful opportunity to participate effectively in the
adjudication of his claims, and therefore found the error
harmless).
The Veterans Court further held in Vazquez-Flores v. Peake that,
for an
increased-compensation claim, 38 U.S.C. § 5103(a) requires, at a
minimum, that VA notify the claimant that, to substantiate the
claim, the medical or lay evidence must show a worsening or
increase in severity of the disability and the effect that such
worsening or increase has on the claimant's employment and
daily life.
On appeal, however, in Vazquez-Flores v. Shinseki, 2009 WL
2835434 (Fed.Cir.), the Federal Circuit vacated and remanded
important aspects of the Veterans Court's holding in Vazquez-
Flores, as well as a related case, Schultz v. Peake, No. 03-1235,
2008 WL 2129773, at 5 (Vet. App. Mar. 7, 2008). Significantly,
the Federal Circuit concluded that "the notice described in 38
U.S.C. § 5103(a) need not be Veteran specific." Similarly,
"while a Veteran's 'daily life' evidence might in some cases lead
to evidence of impairment in earning capacity, the statutory
scheme does not require such evidence for proper claim
adjudication." Thus, the Federal Circuit held, "insofar as the
notice described by the Veterans Court in Vazquez-Flores requires
the VA to notify a Veteran of alternative diagnostic codes or
potential "daily life" evidence, we vacate the judgments."
Vazquez, 2009 WL 2835434, at 10.
It also since has been held in Vazquez-Flores v. Shinseki, No.
05-0355, 2010 WL 4146124 (Vet. App. Oct. 22, 2010) that, after a
notice error, such as failing to inform the appellant to submit
evidence demonstrating the effect that a worsening of the
disability has on employment, is found in an increased rating
claim, the claimant's burden to demonstrate prejudice, at the U.
S. Court of Appeals for Veterans Claims (Court/CAVC) level, does
not shift to VA unless notice is not provided at all.
Here, letters satisfying the notice requirements of 38 U.S.C.A. §
5103(a) and 38 C.F.R. § 3.159(b)(1) were sent to the Veteran in
April 2007, January 2008 and January 2009. That initial April
2007 letter informed her of the evidence required to substantiate
her underlying claim for service connection and apprised her of
her and VA's respective responsibilities in obtaining this
supporting evidence (again, keeping in mind her claim arose in
that context). Whereas the more recent January 2008 and January
2009 letters concerned the "downstream" disability rating and
effective date elements of her claim. VA was not required to
provide that additional notice concerning these "downstream"
elements of the claim. See VAOPGCPREC 8-2003 (Dec. 2003).
Rather, following the receipt of a timely notice of disagreement
(NOD) concerning a downstream issue, the provisions of
38 U.S.C.A. § 7105(d) require VA instead to send the Veteran a
SOC if her disagreement is not resolved, which the RO provided
the Veteran in January 2008. The RO also since has provided her
an SSOC in January 2009, considering any additional evidence
submitted or otherwise obtained since the SOC. So no further
notice is required. See Goodwin v. Peake, 22 Vet. App. 128
(2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).
The Board also finds that all necessary development of the claim
has been accomplished, and therefore appellate review may proceed
without prejudicing the Veteran. The RO obtained all medical and
other records that she and her representative identified as
potentially relevant to the claim - including her
service treatment records (STRs), VA outpatient treatment
records, and the reports of her VA compensation examinations.
The reports of those VA compensation examinations, and this other
evidence mentioned, provides the information needed to assess the
severity of her disability prior to January 3, 2009, when the
Veteran received the higher 40 percent rating. 38 C.F.R.
§§ 3.327, 4.2. So reexamination is not needed, including to
determine whether she is entitled to an earlier effective date
for this higher rating because there is sufficient medical and
other evidence, already on file, to make this determination.
See 38 U.S.C.A. § 5103A(d)(2)(A)-(C); 38 C.F.R. § 3.159(c)(4)(A)-
(C). See, too, Chotta v. Peake, 22 Vet. App. 80, 85 (2008)
(recognizing that, in some instances, it may be necessary to
obtain a "retrospective" medical opinion assessing the severity
of a disability years prior).
Accordingly, the Board finds that no further development of the
claim is needed to meet the requirements of the VCAA.
II. Whether the Veteran is Entitled to an Initial Rating Higher
than 20 Percent prior to January 3, 2009
As already explained, the Veteran has indicated she is satisfied
with the higher 40 percent rating that was granted for her low
back disability during the pendency of her appeal, just not the
effective date for this higher rating. She believes it should be
December 18, 2006, the day after she separated from service (the
same effective date as her existing 20 percent rating), because
her low back disability was as severe then as when eventually
increased to 40 percent as of January 3, 2009.
The assignment of effective dates for awards of disability
compensation is generally governed by 38 U.S.C.A. § 5110 and 38
C.F.R. § 3.400. This statute and regulation provide that the
effective date "shall be fixed in accordance with the facts
found, but shall not be earlier than the date of receipt of
application thereof," unless specifically provided otherwise.
38 U.S.C.A. § 5110(a).
Having said that, it is important to understand that the
effective date for the grant of service connection does not
necessarily coincide with the effective date for the grant of a
certain rating for a disability, once service connected. McGrath
v. Gober, 14 Vet. App. 28, 35 (2000); Lalonde v. West, 12 Vet.
App. 377 (1999).
Where, as here, the Veteran filed her claim for service
connection within one year of her discharge from service, the
effective date for the grant of service connection will be the
day following her separation service. See 38 U.S.C.A.
§ 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). And this is precisely
what occurred here as both the grant of service connection and
the initial 20 percent rating for her low back disability were
made retroactively effective from December 18, 2006, the day
after she separated from service (was medically discharged with
severance pay on account of this disability).
But 38 U.S.C.A. § 5110(b)(2) states that the effective date of an
increased rating (keeping in mind that she now has a higher 40
percent rating for this disability) "shall be the earliest date
as of which it is ascertainable that an increase in disability
had occurred, if application is received within one year from
such date." Under 38 C.F.R. § 3.400(o)(1), except as provided
in paragraph (o)(2), the effective date is the "date of receipt
of claim or date entitlement arose, whichever is later."
Paragraph (o)(2) provides that the effective date is the
"[e]arliest date as of which it is factually ascertainable that
an increase in disability had occurred if a claim is received
within one year from such date, otherwise, date of receipt of
claim."
It therefore follows that three possible effective dates may be
assigned depending on the facts of the particular case:
(1) if an increase in disability occurs
after the claim is filed, the date that the
increase is shown to have occurred (date
entitlement arose)
(38 C.F.R. § 3.400(o)(1));
(2) if an increase in disability precedes
the claim by a year or less, the date that
the increase is shown to have occurred
(factually ascertainable)
(38 C.F.R. § 3.400(o)(2)); or
(3) if an increase in disability precedes
the claim by more than a year, the date
that the claim is received (date of claim)
(38 C.F.R. § 3.400(o)(2)).
See Harper v. Brown, 10 Vet App 125, 126 (1997).
So determining the appropriate effective date for an increased
rating under the effective date regulations involves an analysis
of the evidence to determine: (1) when a claim for an increased
rating was received and, if possible, (2) when the increase in
disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2)
(2010).
In this context, it should be noted that the provisions of 38
U.S.C.A. § 5110 refer to the date an "application" is received.
While the term "application" is not defined in the statute, the
regulations use the terms "claim" and "application"
interchangeably, and they are defined broadly to include "a
formal or informal communication in writing requesting a
determination of entitlement, or evidencing a belief in
entitlement, to a benefit." 38 C.F.R. § 3.1(p). The benefit
sought must be identified, see Stewart v. Brown, 10 Vet. App. 15,
18 (1997), but need not be specific, see Servello v. Derwinski, 3
Vet. App. 196, 198-199 (1992). Any communication or action
indicating an intent to apply for one or more benefits under the
laws administered by VA, from a claimant or her duly authorized
representative, may be considered an informal claim. Such claim
must identify the benefit sought. Upon receipt of an informal
claim, if a formal claim has not been filed, an application form
will be forwarded to the claimant for execution. If received
within one year from the date it was sent to the claimant, it
will be considered filed as of the date of receipt of the
informal claim. 38 C.F.R. § 3.155.
Under some circumstances, the date of outpatient or hospital
treatment or date of admission to VA or uniformed services
hospital will be accepted as the date of receipt of an informal
claim. 38 C.F.R. § 3.157(b)(1).
The Court has held that 38 U.S.C.A. § 5110(b)(2) specifically
links any effective date earlier than the date of application to:
(1) evidence that an increase in disability had occurred; and (2)
to the receipt of an application within one year after that
increase in disability. The application referred to must be an
application on the basis of which the increased rating was
awarded, because there would be no reason to adjudicate the
question of the effective date prior to the award of a rating
increase, just as there would be no reason to assign a disability
rating on a disability compensation claim until service
connection had been awarded. 38 U.S.C.A. § 5110(b)(2) allows a
claimant to be awarded an effective date up to one year prior to
the filing of an application for an increase, if an increase to
the next disability level is ascertainable, and if a claim is
received within one year thereafter. VA must review all the
evidence of record, not just evidence not previously considered.
The Court has noted that 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. §
3.400(o)(2) are applicable only where the increase precedes the
claim for increase, provided also that the claim for increase is
received within one year after the increase. The Court further
stated that the phrase "otherwise, the effective date shall be
the date of receipt of the claim" provides the applicable
effective date when a factually-ascertainable increase occurred
more than one year prior to receipt of the claim for increase.
Hazan v. Gober, 10 Vet. App. 511 (1997).
Here, since the Veteran timely appealed the 20 percent rating
initially assigned for her low back disability - as of December
18, 2006, a rating that, as mentioned, since has been increased
to 40 percent as of January 3, 2009, the RO's June 2007 decision
granting service connection and assigning that initial rating did
not become final and binding on her, so consideration of her
downstream claim for an earlier effective date for this eventual
higher 40 percent rating may proceed. See Rudd v. Nicholson, 20
Vet. App. 296 (2006) (holding that a free-standing claim for an
earlier effective date as to a previous final and binding
decision is not authorized by law).
However, the probative (competent and credible) medical and other
evidence of record does not support the Veteran's contention that
she met the requirements for the higher 40 percent rating at any
point from the time of her separation from service in December
2006 until her VA compensation examination on January 3, 2009.
There are numerous post-service VA outpatient treatment records
on file dating from October 2005 to October 2006, from February
to May 2007, and from February 2008 to January 2009. But these
records mostly mention her complaints of chronic low back pain
(LBP) and the different modalities of treatment that had been
tried to alleviate it (e.g., medication, injections, and physical
therapy). It was also indicated that she had become depressed
over constantly having to deal with this pain, including at her
job. She reportedly could no longer work as a welder, a
profession she had most enjoyed and preferred in service, because
her low back disability no longer permitted her to work in that
type of physically-demanding occupation. But service connection
also since has been granted for posttraumatic stress disorder
(PTSD) and major depressive disorder (MDD) on account of this
additional consequent disability, and she has a separate
50 percent rating for her resultant mental impairment and
anguish, so already is receiving additional compensation for
this. Moreover, these records additionally show she was able to
obtain other employment, at least for a while, which was less
physically demanding (clerical, etc.), although she eventually
had to stop even those more sedentary jobs. Hence, VA granted
her a total disability rating based on individual unemployability
(TDIU) effective January 3, 2009, so as of the same date she
received the higher 40 percent rating for her low back
disability.
There are no range-of-motion measurements in any of these VA
outpatient treatment records, and this is unfortunate because
this is the primary basis of rating the Veteran's low back
disability. Even though these records confirm she had DJD (i.e.,
arthritis) in her low back according to magnetic resonance
imaging (MRI) and X-rays, this only entitles her to at most a 20
percent rating under 38 C.F.R. § 4.71a, DC 5003, even considering
her pain, since this is the highest possible rating under this
code. To alternatively receive a higher 40 percent rating under
DC 5242, which also pertains to degenerative arthritis of the
spine, her forward flexion must be limited to 30 degrees or less
or she must have favorable ankylosis of her entire thoracolumbar
spine. This was not objectively shown until her VA compensation
examination on January 3, 2009. There also was no
objective indication prior to January 3, 2009, of any
incapacitating episodes - meaning physician-prescribed bed rest,
to otherwise warrant assigning a rating higher than 20 percent
for intervertebral disc syndrome (IVDS), so even were the Board
to assume for the sake of argument she additionally had disc
disease associated with or part and parcel of her low back
disability. See 38 C.F.R. § 4.71a, DC 5243, including Note (1).
The mere fact that she had not experienced any incapacitating
episodes, according to the definition indicated in this
regulation, necessarily means they had not occurred with
sufficiency duration or frequency during the immediately
preceding 12 months to warrant assigning the higher 40 percent
rating under this alternative DC - and, again, even were the
Board to assume for the sake of argument that it applies.
The only records dated since service showing the range of motion
in the Veteran's low back (specifically, in the thoracic and
lumbar, i.e., thoracolumbar segment of her spine) are the reports
of her VA compensation examinations. Her initial VA compensation
examination was in May 2007, whereas her more recent evaluation
was on January 3, 2009. She does not believe she should be
penalized for the RO taking so long to have her reexamined. See
her February 2009 statement in support of claim (on VA Form 21-
4138) indicating VA "dragged their feet" in getting her re-
evaluated, so her higher 40 percent rating should not just go
back to the date of that re-evaluation because it was
significantly delayed in occurring. She reiterated this argument
during her October 2010 hearing as reason why her effective date,
instead, should go back to December 18, 2006, the day following
her separation from service and more contemporaneous to the time
of her initial claim.
The results of the Veteran's intervening May 2007 VA compensation
examination, however, do not show she met the requirements for
the higher 40 percent rating. Testing of her range of motion
during that initial VA compensation examination revealed that her
forward flexion was to 70 degrees, extension to 20 degrees,
lateral flexion to 20 degrees, and lateral rotation to 35
degrees. There was mild fatigability, weakness and lack of
endurance, but no incoordination. See DeLuca v. Brown, 8 Vet.
App. 202 (1995).
And although there was a 10-degree loss of forward flexion due to
pain on repetitive use based on three repetitions, so lessening
her forward flexion to 60 degrees with this additional
consideration, this still far exceeded the required
30-degree or less limitation necessary for a higher 40 percent
rating under DCs 5235-5242. Indeed, even considering her pain,
she still had twice the amount of forward flexion that would
permit assigning this higher rating and, again, even considering
the affect of her pain on her range of motion in this direction.
DeLuca at 206. Moreover, because she had range of motion in all
directions tested (forward flexion, backward extension, left and
right lateral flexion (meaning bending to each side), and right
and left lateral rotation (twisting)), albeit less than normal
range of motion in most of these directions, her thoracolumbar
spine clearly was not ankylosed in either a favorable or
unfavorable position. Ankylosis is the complete immobility and
consolidation of a joint due to disease, injury or surgical
procedure. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) and
Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders
Encyclopedia and Dictionary of Medicine, Nursing, and
Allied Health at 68 (4th ed. 1987)]. Note (5) to DCs 5235-5242
indicates that, for VA compensation purposes, unfavorable
ankylosis is a condition in which the entire cervical spine,
entire thoracolumbar spine, or the entire spine is fixed in
flexion or extension,.... This clearly was not the situation
here.
Rather, it was not until the more recent VA compensation on
January 3, 2009, when the Veteran had sufficient limitation of
motion on forward flexion to support assigning the higher 40
percent rating for her low back disability, so this marks the
effective date of this higher rating. During this more recent
evaluation, her forward flexion was to only 25 degrees, so less
than the 30 degrees required for a higher 40 percent rating under
DCs 5235-5242. She still did not have any indications of
ankylosis, however, even though she had 0 degrees of extension
since her left and right lateral flexion and left and right
lateral extension were less restricted, each to 25 degrees. See
38 C.F.R. § 4.71a, Plate V, indicating normal forward flexion is
to 90 degrees, and that normal backward extension, lateral
flexion, and rotation are all to 30 degrees.
It is indeed unfortunate that the Veteran was not re-examined
until January 3, 2009, but the Board does not have any authority
to make the higher 40 percent rating retroactive to any earlier
date in the absence of any supporting evidence showing she met
the requirements for this higher rating at an earlier date.
The preponderance of the evidence is against her claim, so no
reasonable doubt to resolve in her favor concerning this, and her
claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3;
Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).
ORDER
The claim for an initial rating higher than 20 percent prior to
January 3, 2009, for the low back disability is denied.
____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs